The opinion of the court was delivered by: William M. Skretny, United States District Judge
Currently before this Court is Defendant's Motion for Resentencing, filed on January 22, 2003.*fn1 Defendant's motion comes as a result of the Bureau of Prison's ("BOP") discontinuation of its policy of honoring judicial sentencing recommendations that eligible defendants be placed into community confinement settings to serve the imprisonment portions of their sentences. As of December 20, 2002, the BOP no longer adheres to such placement recommendations. Despite the unanticipated and abrupt nature of the BOP's change in policy, this Court finds that there is no basis upon which to grant Defendant relief. Accordingly, Defendant's motion is denied.
Defendant pled guilty to a single count of attempting to defraud the United States in violation of 18 U.S.C. § 371, on January 30, 2002. On June 18, 2002, this Court sentenced Defendant, inter alia, to 4-months imprisonment and, as it had done in numerous cases for more than a decade prior, recommended to the BOP that Defendant serve his term of imprisonment at the community confinement facility closest to his residence.*fn2 This Court included this recommendation for the specific purposes of allowing Defendant to maintain his employment, to make restitution to the government, and to continue to support his family.
On September 24, 2002, at Defendant's request, this Court stayed his facility designation until December 1, 2002, to allow him to complete the manager trainee program that his employer, Darden Restaurants, required of its employees. (Buth Aff., ¶ 7.) During this time, Defendant continued to comply with the conditions of his pre-sentence release. (Buth Aff., ¶ 8.)
On January 13, 2003, Defendant received a letter from the BOP directing him to report to the Loretto Satellite Camp in Loretto, Pennsylvania. (Buth Aff., ¶ 10.) Loretto is a minimum security camp located approximately three hours from Defendant's residence in Pennsylvania. (Buth Aff., ¶ 10.) Concerned that he had not been designated to a community confinement facility as expected, Defendant contacted his lawyer, who was advised by the BOP that Defendant's designation came as a result of the BOP's policy change. (Buth Aff., ¶ 11.)
III. DISCUSSION AND ANALYSIS
On December 20, 2002, in a memorandum to federal judges, the Director of the BOP announced a significant change in BOP policy: Effective December 20, 2002, the BOP discontinued its long-standing policy of honoring judicial sentencing recommendations that eligible defendants be placed into community confinement facilities for service of the imprisonment portions of their sentences. The BOP's policy change is predicated on the United States Department of Justice, Office of Legal Counsel's legal determination that community confinement is not synonymous with imprisonment, and that substituting traditional imprisonment with community confinement contravenes established caselaw and is inconsistent with the United States Sentencing Guidelines.*fn3 (See Memorandum Opinion for the Deputy Attorney General, Defendant's Memorandum of Law, Ex. B.) Thus, the Department of Justice determined that the BOP has no discretion to permit an inmate sentenced to a term of imprisonment to serve the sentence in a community confinement setting.
In Defendant's initial motion papers, he argued that the shift in the BOP's policy rendered his sentence illegal, and that therefore this Court should correct his sentence under the provisions of Rule 35 of the Federal Rules of Criminal Procedure. However, at oral argument, Defendant's counsel conceded that Rule 35 does not offer a viable avenue for relief.*fn4 Rather, by her legal memorandum and oral argument, Defendant's counsel now requests that this Court issue an order of mandamus compelling the BOP to adhere to its previous practice of honoring judicial recommendations and to place Defendant in a community confinement facility. Defendant argues that the retroactive application of the BOP's new policy to him violates his Due Process rights and the Ex Post Facto clause. For the following reasons, this Court is unpersuaded.
The BOP is vested with the exclusive statutory authority to designate prisoners' places of imprisonment. See 18 U.S.C. § 3621(b); United States v. James, 244 F. Supp.2d 817, 819 (E.D.Mich. 2003) ("It is well established that Congress has given the [BOP], and not the federal courts, the exclusive authority to decide where federal prisoners will serve terms of imprisonment."). While it is true that federal sentencing courts have long made placement recommendations to the BOP, these recommendations have never been more than that — recommendations. The Second Circuit has recognized the advisory nature of such recommendations, and has stated that "[w]hile BOP may consider the recommendation of the sentencing judge in determining the place of a confinement, the district judge's views are not controlling." United States v. Pineyro, 112 F.3d 43, 45 (2d Cir. 1997). The BOP's routine adherence to these recommendations did not act to elevate the recommendations to the level of a judicial order or directive. At all times, the BOP was free to disregard any judicial placement recommendation with which it disagreed.
As such, even prior to the BOP's recent policy change, all federal defendants assumed the risk that the BOP would decline to follow the sentencing court's recommendation. Defendant here is no different. Despite his protestations that he relied on the BOP's past practice and the probability that the BOP would follow this Court's community confinement recommendation, Defendant concedes that he did not have a right to such placement, and that he knew that this Court's role in the designation decision was limited to perhaps making a community confinement recommendation. It is within this context that this Court now turns to Defendant's arguments and request for relief.
First, Defendant contends that his Due Process right to be sentenced based on accurate information was violated because this Court sentenced him based on misinformation, i.e., this Court's understanding that the BOP could follow its recommendation. It is well settled that the Due Process Clause protects a defendant from being sentenced based on inaccurate or false information. See United States v. Addonizio, 442 U.S. 178, 187, 99 S.Ct. 2235, 2241, 60 L.Ed.2d 805 (1979). However, in this instance, the premise of Defendant's argument is fatally flawed because there was no false or misleading information presented or considered at the time Defendant was sentenced. See United States v. Andrews, 240 F. Supp.2d 636, 638 (E.D.Mich. 2003) ("the fact that the B.O.P. no longer treats `community confinement' as synonymous with `imprisonment' is not materially false information").
At the time this Court sentenced Defendant, it was fully aware that its recommendation was not binding on the BOP, as were all of the parties involved. Moreover, this Court was fully aware that the BOP had the discretion to decline to follow its placement recommendation if it so chose. This Court was therefore not operating under any sort of misunderstanding, and thus there was no Due Process violation. See United States v. Herron, No. 03-3039-JAR, 02-40056-001-JAR, 2003 WL 272170, at *1 (D.Kan. Feb. 3, 2002) ("[w]hen the BOP does not follow the recommendations of a sentencing Court, the result does not render the sentence invalid because of material ...